The issue of divorce has been on my mind again following the C4 Shariah doc and this Islamic law ruckus that’s erupted recently. And I have to admit this topic leaves me feeling uneasy. I have many issues with the Islamic system of khula and my previous quests of trying to find explanations for it have fallen short, raising more questions rather than providing answers.

I have never understood why women do not have the right to divorce. Obtaining khula isn’t the right to divorce per se because it requires 3rd party intervention whereas the man’s right to divorce usually requires no 3rd party and is binding upon utterance. Sure women can include it in their marriage contract but why is it not a basic full right, in that they have it without necessarily stating/requesting it (which is the current way of doing it)?

So far I’ve not come across any decent explanations for this apparent discrepancy. Why some women have to resort to walking around like beggars pleading for someone to grant them divorce by having to “prove” their case has grounds and a basis I have no idea.

Reasons like you can’t stand your partner anymore (he irritates you, you find him/his habits repelling) or you just want out because the marriage isn’t fulfilling for the most part due to the way this khula system works, from my understanding of it, are not seen as “proper” reasons despite this in theory being a valid a reason as another other such as being beaten, being mistreated or being left to fend on your own for long periods of time

She does not need to provide reasons other than that she is not happy with her marriage and that she cannot or is unwilling to continue to be married to her husband. There is a reference to such a situation in the Qur’an in Verse 229 of Surah 2. A precedent took place at the time of the Prophet when Thabit ibn Qais’s wife came to the Prophet complaining of her marital situation. She stated clearly that she had nothing to talk against her husband, neither in his manners nor in his religious attitude. She simply was not happy, married to him. Thabit ibn Qais had given her a garden as a dower, and the Prophet asked her whether she was willing to return it to him. She said she would and the Prophet told the man to accept the garden and divorce her.

But we are aware that if its not deemed a “proper reason” in terms of a list of things that seem acceptable to some peoples senses, then oh well, you’ll just have to stay stuck in a marriage you don’t want to be in unless your husband pays pity on you and agrees to divorcing you or just divorces you himself.

Whereas he can simply divorce you as and when he see’s fit, without accountability to anyone (but God- lets face it, God is a 2nd thought in all this business when men willy nilly divorce their wives), without 3rd party intervention, without having to prove he has a case/basis for divorcing. And we all realise the procedure of uttering divorce orally is also problematic when some men do it in anger and then retract it often saying “I didn’t mean it” – perhaps doing it in writing, as the majority are not illiterate nowadays, would make these “mistakes” a less frequent occurrence.

These are the reasons given for the current system

Wisdoms behind the right of divorce being given to men

There are many reasons and much wisdom in giving this right to the husbands, just to mention a few:

1) As mentioned previously, divorce is the most detested of the lawful things in Shariah. Therefore, in order to prevent unnecessary divorces, there was a great wisdom in giving the right of divorce to men.

The reason for this is that, in the case of a divorce, although both the husband and wife suffer as a result (psychologically for instance), a man encounters many financial disadvantages and has the additional burden of a heavy responsibility. He loses the dowry (mahr) that was paid to the woman, he will have to pay Mahr for the second time if he marries again, the wife is entitled to financial support and maintenance (nafaqa) whilst in the waiting period (idda), she is entitled to child maintenance if young children are in her custody, etc…

The husband has so much to lose financially if he divorces his wife and this acts as a natural deterrent from abusing his right of divorce. If women had such a right, however, there would be no such check on them because they do not have any financial responsibilities towards their husbands.

2) There is no doubt in the fact that the Almighty Creator created men and women differently in many ways, physically, psychologically, mentally and emotionally. Both men and women have been given certain qualities, features and characteristics and according to these characteristics, Allah Most High divided their responsibilities.

Men and women have been given certain duties and responsibilities that suited them and that it conformed to the way they were created. The responsibility of providing the daily bread was placed on the shoulder of the husband, as it requires physical strength and men were naturally created with more physical power than women. Similarly, the responsibility of looking after the household affairs (to a certain degree) was given to the woman, as that was more suited to her.

This is not a question of injustice or sexual discrimination. Let me give you an example: I had two friends that were ready to help and assist me due to seeing me overloaded with work. Now, I had two things that needed to be done, one was to thoroughly clean my office with the moving of heavy furniture, and the other job was to calculate my accounts. One of my friends was physically stronger and had a well-built body, whilst the other was not so quite fortunate in this regard, but had a great brain. It will only be from common sense that I hand the job of calculation to the one who was more able mentally and the lifting of heavy furniture to the one who had more strength, might and power. If the contrary was done, it would be condemned by everybody.

Similar is the case with Allah Almighty in that He distributed the responsibilities and rights between men and women in a way that was suited to them. Women naturally have been created with this great quality of compassion, warmth and sensitivity. They are easily pleased and made angry. This is something that they have naturally been created with. If the husband becomes upset, it may take months in order to overcome his stubbornness and please him, whilst the wife can be pleased very easily no matter how displeased she was. This is one of the great qualities women possess and we as men should definitely learn from it.

Due to women being more sensitive then men, it was natural (keeping in mind the dislike of divorce in Islam) that the right to divorce was not given to them. If it was, then there would be many divorces and break up of marriages. They would issue divorces in the heat of the moment and regret it later. Ask married couples how many times the wife divorces her husband during the day, but from the heart she truly and genuinely loves him and could not consider a moment of her life without him. A man due to his doggedness and generally having more ability to reflect and ponder was duly given this right of divorce.

These are just two of the wisdoms behind the right of divorce been given to the man.

Doesn’t really answer the question apart from pointing to the disadvantage of the man financially in divorcing his wife, and this acting as a deterrent for him. And we have discussed the other aspects of women being “unstable creatures” and things of that nature in previous posts (which you can find pingbacked from this entry) so I won’t go back into those.

Here in a Q& A session, they acknowledge the husband has the upper hand of divorce, but gloss that over with magic fairy dust by talking of her “right” to “demand” divorce and the husband has to “comply” with the request – otherwise she can have it “reinforced” by the courts and “it will be granted” whether the husband agrees or not. Nice in theory, doesn’t happen in practise as pointed out here

Back to reality. Despite women having the right under ‘true’ Qur’anic interpretation to dissolve marriage, men seem to have absolute power on the dissolution, mainly backed up by referring to Verse 2:228 and using 4:34 in the same breath (see �2.1), which can be interpreted in different ways. Most women are hardly allowed to exercise their right to divorce because of the tremendous social and mental pressures to which they are subjected (Hassan; Jawad, 1998:82). Further, to discourage women to initiate or agree with the above-mentioned idea of a no-fault divorce, they are normally denied custody of their children (Hassan). Moreover, one needs to take into account that the majority of Muslim women have had minimal, or no, education and no job, together with minimal social security (compared to European states) resulting in relatively more economic hardship.

What IS the basis of not giving women the full right to divorce? What is the “wisdom” behind it?